RE: Dividend13 Nov 2022 10:04
The text of the Art. 52/1/b of the ICSID Convention does not make any difference between jurisdictional matters and substance issues. So, to annul an Award based on excess of powers in jurisdictional terms, the excess of powers has to be manifest. Although there are some different views on that, if there is an uncertainty or doubt on whether or not the Tribunal has jurisdiction, that question should be settled by the Tribunal itself. If an interpretation is required to deciding on jurisdiction, it means that it is not manifest. Although the Committee does not agree on the finding and interpretation of the Tribunal, the Committee should refrain from to replace the Tribunal’s interpretation with its own. The decision as to whether a dispute falls within the jurisdiction of the Tribunal is subject to the interpretation of each individual Tribunal.
The ICSID Convention clearly contains a limited inquiry in jurisdictional matters of an Award and the Committees do not have the authority to examine a Tribunal’s jurisdictional decision on a de novo basis, as if they were appellate courts.